Why is it much, much worse for protesters to interfere with oil exploration at sea than on the land?

A couple of years ago I wrote this post about the attempts to stop Petrobras surveying for oil in the seas off East Cape. The gist of it was that I couldn't see the legal basis for the Police intervening to stop the protestors' actions, insofar as they didn't seem to be committing any offence by simply sailing ships/taking swims in the open ocean even where this had the effect of interfering with the Petrobras survey.

The post then sparked some excellent discussion from some very smart people who knew more about the subject than me (some of whom, I note, seem to have become collateral damage in Pundit's never-ending war on spammers ... please rejoin!!!!). That discussion eventually worked out what law the Police were relying on in order to intervene in the matter: maritime safety regulations. But it's fair to say there remained some scepticism as to whether this provided a solid legal basis for their actions.

Then, in July last year, the District Court threw out the charges brought against one of the protest flotilla skippers on the basis that as the activities happened outside the limits of New Zealand's 12 mile territorial sea, New Zealand courts have no jurisdiction over the matter. That ruling was then reversed by the High Court, which found that there is jurisdiction over the matter and ordered that a defended hearing on the charges take place. However, we've yet to see whether, in fact, any actual offences were committed during the protest.

All of which means that there's still a measure of legal uncertainty as to exactly what actions are and are not lawful when protesting against oil exploration in the high seas. And, as we all know, business hates uncertainty. And, as we all know, oil and gas are going to be the saviours of New Zealand's economy, so the Government hates what business hates. Which is why my last words in the original post on the Petrobras protests were:

[A]lternatively, the Government may just rush through a law under urgency to make the protest unlawful.

It turns out that this was unnecessarily cynical of me. Because the Government isn't using urgency to rush through such a law. Instead, it's using a Supplementary Order Paper to do so, thereby inserting the measure into a Bill after the select committee stage (when the public gets the chance to comment on the proposal) and also avoiding any formal New Zealand Bill of Rights Act scrutiny under section 7.

So, that's a much better process, then. Sorry that I ever doubted you.

Putting the small matter of good legislative practice to one side, what does the proposed new offence provision actually say? I don't know for certain, as the SOP isn't up on Parliament's website yet, but here is how the Minister responsible (Simon Bridges) described it on TVNZ's Q&A:

SIMON So we are acting, and so two offences are going to be put into the Crown Minerals Bill. Look, the first of those is truly criminal offence. Effectively, what it says is that it will be stopping people out there at deep sea, in rough waters, dangerous conditions, doing dangerous acts, damaging and interfering with legitimate business interests with ships, for example, seismic ships, and what they're doing out there.

JESSICA What fines are we talking about there?

SIMON Well, for that one, 12 months' imprisonment, or $1000 (please note: the minister meant $100,000 not $1000) or $50,000 fine, depending on whether you're a body corporate or an individual. Then a lesser, more infringement offence, really, strict liability offence for entering within a specified area, probably up to 500 metres within that ship, again because of the dangers associated with doing that.

Let's first focus on the measures it is proposing to combat the evil of high-seas protest activity. Jumping into the water in the path of a ship whilst clad in a survival suit could put you in jail for up to a year and cost you as an individual up to $50,000. That's a pretty heavy consequence to face, demonstrating just how vitally important the activity of surveying and drilling for oil and gas must be.

Except ... now consider this case. A company is going to drill into some land in Taranaki and "frack" it to produce oil, under a permit granted under the Crown Minerals Act 1991. So an anti-mining group decides to protest this activity by forming a human chain to block the only road to the land, thus preventing the company from moving its machinery to the site on heavy trucks.

Well, the protestors are blocking a road, so they could be arrested for "obstructing [a] public way" under the Summary Offences Act. Which could result in them ... being fined $1000. Or, because the protestors are stopping the company from being able to carry out their mining, they may be "wilfully obstruct[ing], hinder[ing], resist[ing], or deceiv[ing] any person in the execution of any powers conferred on that person by or under [the Crown Minerals Act]." That particular offence may result in them ... being fined $1500. Although, to show how seriously this sort of thing is viewed, the Government (and Parliament's Commerce Committee) propose doubling that fine to $3000.

Which seems a little odd. Why is it that stopping an oil and gas company from carrying out its lawful business on land attracts but a fraction of the possible sentence that doing so at sea will?

The issue of "safety" seems too weak a hook on which to hang the matter. After all, sitting in a roadway in front of a big truck is a pretty risky thing to do. And in any case, since when did a National Government committed to "individual freedom and choice" and "personal responsibility" become so concerned with subjecting people to heavy criminal sanction simply because they are doing something that might hurt themselves? (Note: I get that the reason for criminalising protests at sea isn't just about safety - I'm interested here in why there are such markedly different penalties for protesting on sea from on land.) Furthermore, if "you might hurt yourself" is reason enough for stiffening the criminal penalties that apply to protestors in the open ocean, why do we still let people travel through those oceans in small rowboats and kayaks ... without even having to wear a lifejacket (although you do have to have one stowed somewhere on board). It seems the Nanny State is getting very concerned with some forms of risk, but not with others.

So forgive me if I end on another slightly cynical note. I can't help but wonder if the reason why the Government is cracking down so heavily on sea-bourne protests against oil exploration is because they actually worked - and so the Government wants to make sure that there aren't any more in the future.

Comments (8)

When I read the decision of the High Court in the Teddy decision, I did think about trying to revive that comment thread with a mea culpa, because on the basis of the High Court decision, my argument was wrong.

I guess it shows why I'm not a High Court Judge. If I had gotten to point where I was deciding if my argument was right, or if the Summary Proceedings Act was right, I would have gone with the Act being right.

In deciding if there is a power of arrest outside the territorial limit, it would have seemed to me that the law wouldn't allow a charge of resisiting arrest to be pursued would be a powerful argument suggesting there was no arrest power at all. Rather than considering that argument then, we instead get to the position (based on other arguments) that there is an arrest power, so that must mean the bit of the law would prevent you charging someone with resisting arrest in the circumstances is wrong.

Does this type of disproportianate penalty occur very frequently in law? Several months ago I submitted on the Conservation (Natural Heritage Protection) Bill, which is a Bill that's been drummed up to increase the possible penalty for people who do things like whacking seals with baseball bats or attempt to smuggle protected wildlife from the country. That's the only sort of thing that MPs care about judging by the speeches, at least.

On the side, however, the maximum penalty for entering "closed" land in a Conservation Area under the Conservation Act is massively disproportionate to that of entering "closed" land in National Parks under the National Parks Act, even though those types of land are often treated almost interchangably where recreation and entry is concerned. (Presently $500 (NP) compared with $10,000 or a jail term (CA), and under the Bill about to increase to $5,000 (NP) compared with $100,000/$200,000 and a longer jail term (CA).)

This is all, apparently, because the Conservation Act doesn't set an explicit penalty for the act of crossing a line, whereas the National Parks Act does, so I proposed that the discrepancy could be fixed if the Bill were to insert a specific penalty into the Conservation Act for crossing a line. It caused me to wonder how many other similar discrepancies are out there simply due to the piecemeal nature of law-making, though.

Second: I'd note that the SOP could apply on land as well as sea. This is particularly true for s101B(1)(c). Using the example you gave: a human chain across a road to prevent a ship from receiving delivery of supplies before leaving dock would seem to me to be prima facie interference in connection with a ship.

Third: it seems likely to me that the courts could read down the word 'interfere' in the SOP. Following the Hansen methodology, it seems likely to me that a literal meaning of the word would not pass the Oakes test. This is because the of proportionality: interference can range from very small, to very large: all the way from sabotage Rainbow Warrior style to intentionally giving wrong directions to crew members so they don't arrive at the dock at time to catch the ship. I can't think of an alternative interpretation off the top of my head, but something such as 'substantial actual interference' may be a more preferable interpretation. There's also the question of whether interference is assessed objectively or subjectively.

Actually, I may be wrong on the second point. The section title for s101B is 'Interfering with structure or operation in offshore area'. It seems unlikely that a proper interpretation of any of the subsections would allow it to be used in non-offshore areas.

With regards the application of the provision (assuming it passes), it covers "damage to, or interference with, any structure or ship that is in an offshore area ...", so protests against ships that have yet to sail aren't covered.

However, I note that the serious offence (the one that sends you to jail for a year, or costs you up to $50,000) is committed "if [a] person intentionally engages in conduct that results in ... interference with any operations or activities being carried out, or any works being executed, on, by means of, or in connection with ... a structure or ship [in an offshore area]." Note that there is no geographic limit to this offence - you don't have to be within the 500m "non-interference zone". So, on a plain reading, blocking a truck that is carrying goods to resupply an oil-producing/exploring ship/structure in an offshore area - thereby "interfering" with its operations - is an offence against the provision.

Now, whether a court would read the provision in this way (and you'd hope it wouldn't) is a moot point. But it does seem an exceptionally broadly worded provision, and one that imposes potentially severe limitations on the right to protest at sea.

Now, whether a court would read the provision in this way (and you'd hope it wouldn't) is a moot point. But it does seem an exceptionally broadly worded provision, and one that imposes potentially severe limitations on the right to protest at sea.

We shall all have to make sure we put in submissions on the bill when it reaches select committee.